Recommendations

Recommendations

To the Government of the United States

To the Executive

1. Improve transparency around legal and policy frameworks

1.1 Follow up the release of the 2016 Legal and Policy Frameworks document by issuing an updated, detailed, and reasoned analysis which adequately explains which legal and policy frameworks apply to all of its operations overseas. Explain why these frameworks apply, and provide detailed justifications for their application, including a clear and definitive statement setting out which standards apply as a matter of law, and which apply as a matter of policy.

1.2 Disclose the legal basis for individual strikes, including by releasing all Office of Legal Counsel and other agency legal memoranda that set forth the basis for the use of force against all persons targeted, whether U.S. citizen or non-citizen, subject only to redactions strictly necessary for legitimate national security reasons.

1.3 On a regular basis, publicly disclose where and when the Presidential Policy Guidance applies.

1.4 Notify the U.N. Security Council in each instance where the United States uses force in the exercise of self-defense.

1.5 Disclose all instances where consent was provided by another government to carry out a strike on its territory, including:

when consent was provided;

which department and/or official of that government provided consent; and

an explanation of the scope of consent provided, including whether it was limited temporally, geographically, or operationally.

1.6 Provide detailed definitions and explanations of how all key legal and policy terms and criteria are interpreted and applied, including:

“areas of active hostilities;”

“associated forces;”

“cannot or will not effectively address the threat to U.S. persons;”

“continuing, imminent threat;”

“extraordinary circumstances,” and “fleeting opportunity;”

“feasibility of capture;”

“high value terrorist;”

“individual targetable in the exercise of national self-defense;”

“near certainty” that non-combatants will not be killed or injured;

“near certainty” with respect to the presence of targets;

“non-combatant;”

the criteria used to determine that a foreign government is “unable or unwilling to address a threat posed by the non-state actor on its territory”; and

the circumstances and criteria for determining when a non-international armed conflict begins and ends.

1.7 Where any legitimate need for secrecy for national security reasons has passed, disclose more detailed targeting rules and rules of engagement.

2. Improve transparency in relation to lethal force practices

2.1 Provide detailed explanations for all past and future strikes in which there are credible allegations of unlawful killings or civilian harm. In particular, provide urgent responses to the ten serious cases that civil society groups have raised with the U.S. government.

2.2 Record, acknowledge, and explain to families and the public every civilian death, providing the name of the person killed.

2.3 Acknowledge all ongoing and future strikes, including by applying Executive Order 13,732 on United States Policy on Pre-and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force.

2.4 To enable greater transparency, transfer authority for conducting lethal strikes from the CIA to the Department of Defense.

2.5 Ensure that the Director of National Intelligence continues to release a set of casualty figures on an annual basis pursuant to Executive Order 13,732. The release should be expanded so that it is sufficiently detailed and disaggregated, and include:

government estimates of the numbers of those killed and injured in strikes, and the numbers of strikes assessed to be lawful or unlawful, broken down by month, year, country, age, and sex;

the name and age of each of those killed; and

the methodology used to gather, assess, and compile civilian casualty estimates.

3. Enhance transparency around decision-making processes

3.1 Disclose details of internal government processes to make strike decisions, including explanations for all exceptional procedures as envisaged in the 2013 Presidential Policy Guidance.

4. Ensure robust oversight and accountability mechanisms

In order to ensure external oversight and accountability of its lethal use of force operations:

4.1 Make public and accessible information about the activities and findings of internal executive branch reviews or oversight mechanisms in relation to the use of lethal force overseas (if any), subject only to redactions strictly necessary for legitimate national security reasons.

4.2 To the extent that the government takes any actions or makes modifications to lethal use of force policy or practices in response to oversight, disclose such information subject only to redactions strictly necessary for legitimate national security reasons.

4.3 Ensure that findings and lessons learned from post-strike investigations lead to measures that better avoid or mitigate civilian casualties. Publicly report progress on how lessons have been implemented and assessments of the efficacy of reforms made.

4.4 Compile and publish an annual breakdown of:

all investigations opened;

disciplinary measures and prosecutions taken; and

convictions against individuals responsible for violations of law or rules involving the use of force overseas.

4.5 Release statistical and aggregate information on the number of cases in which compensation or condolence payments were paid to those injured or families of people killed in strikes, together with the amounts paid. Publish case-specific information each time a payment is made specifying the amount and the reason, where the recipients of the payment agree to public disclosure and such disclosure is not assessed to be a security risk to the recipient or their families.

4.6 Disseminate, through appropriate media and other channels, concretely how those harmed by U.S. strikes or their representatives may make allegations and seek condolence or compensation payments. Publicized information should include: procedures, criteria, and timelines for government responses. Do not invoke the state secrets privilege to prevent post-strike judicial review, where to do so would effectively deny to alleged victims their right to a remedy, a right to which they are entitled under international law.

To the Department of Defense

5. Enhance disclosure of information on use of lethal force practices

5.1 Promptly and publicly acknowledge all strikes. For each strike, release:

the name of the agency responsible;

the date of the strike;

the country in which it occurred;

the numbers of those believed killed and injured, with their age, gender, and whether civilian;

in armed conflict situations, information on whether the person killed or injured was a civilian or combatant, and whether any civilian casualties were foreseen or were unanticipated;

outside of armed conflict situations, the numbers of people killed or injured, and whether they were assessed after the strike to be lawfully targeted or not;

the legal basis for the strike; and

details regarding whether a post-strike investigation has been launched, including an expected timeframe for completion.

Such information should be provided in a uniform database, and in a manner that is accessible so that it is possible for the public, journalists, and NGOs to review and evaluate strikes.

6.1 Publicly explain the decision-making processes followed by the Joint Special Operations Command in its targeting operations.

7. Ensure robust oversight and accountability

7.1 Disclose procedures and standards for assessing the reliability and accuracy of allegations of civilian harm made by alleged victims and witnesses, human rights organizations or other monitoring groups, the media, or others.

7.2 Promptly release the results of investigations into specific strikes, subject only to redactions where families or those injured have requested privacy or to ensure their physical safety, or only as strictly necessary for legitimate national security reasons.

Release:

the steps that were taken to investigate the strike, including whether any of those directly impacted, witnesses, and/or families were interviewed;

the scope and purpose of the investigation and which agencies and particular teams were involved, including, for example, the resources and expertise devoted to investigations;

details of to whom the investigating team reported its findings;

the assessment and analysis of the lawfulness of the strike, including analysis of what precautions were taken before and during attack;

the assessment of the legality of the strikes and an explanation of whether and why civilians were killed or injured;

information on what lessons have been learned from the strike and whether and how practices and procedures can be improved in the future to reduce civilian casualties; and

where strikes are assessed to have resulted in civilian casualties, violated the law, or to have been in contravention of administrative rules, information on what procedures are being followed to investigate, discipline, and/or prosecute those responsible and/or provide compensation or condolence payments to those injured and the families of those killed.

7.3 Acknowledge and provide explanations where there are discrepancies between the U.S. government’s findings and those of the United Nations, human rights organizations, or journalists, including how the civil society reports were assessed in the course of U.S. investigations.

9.1 Disclose which specific domestic and international legal and policy frameworks the CIA operated under when using lethal force overseas, in each country where the CIA carried out strikes.

10. Disclose information on use of lethal force practices

10.1 Publicly and officially acknowledge the CIA’s role in drone strikes in areas in which the agency has used lethal force.

10.2 Establish a process to declassify information about the CIA’s use of lethal force since September 11, 2001.

10.3 Without further delay, publicly acknowledge all strikes, releasing:

the name of the agency responsible;

the date of the strike;

the country in which it occurred;

preliminary figures of those believed killed and injured, with age, gender and whether civilian, where known;

in armed conflict situations, information on whether the person killed or injured was a civilian or combatant, and whether any civilian casualties were foreseen or were unanticipated;

outside of armed conflict situations, the numbers of people killed or injured, and whether they were assessed after the strike to be lawfully targeted or not;

the legal basis for the strike; and

details regarding whether a post-strike investigation has been launched, including an expected timeframe for completion.

Such information should be provided in a uniform database, and in a manner that is accessible so that it is possible for the public, journalists, and NGOs to review and evaluate strikes.

11. Disclose information about the CIA’s decision-making processes

11.1 Make public and accessible the CIA’s decision-making procedures for carrying out strikes.

12. Disclose information about the CIA’s accountability mechanisms

12.1 Make public and accessible the agency’s civilian protection mechanisms, including its civilian casualty mitigation processes and post-strike investigation procedures.

12.2 Disclose procedures and standards for assessing the reliability and accuracy of allegations of civilian harm made by alleged victims and witnesses, human rights organizations or other monitoring groups, the media, or others.

12.3 Without further delay release the results of investigations into specific strikes, subject only to redactions strictly necessary for legitimate national security reasons.

Release:

the steps that were taken to investigate the strike, including whether any of those directly impacted, witnesses, and/or families were interviewed;

the scope and purpose of the investigation and which agencies and particular teams were involved, including, for example, the resources and expertise devoted to investigations;

details of to whom the investigating team reported its findings;

the assessment and analysis of the lawfulness of the strike, including analysis of what precautions were taken before and during attack;

the assessment of the legality of the strikes and an explanation of whether and why civilians were killed or injured;

information on what lessons have been learned from the strike and whether and how practices and procedures can be improved in the future to reduce civilian casualties; and

where strikes are assessed to have resulted in civilian casualties, violated the law, or to have been in contravention of administrative rules, information on what procedures are being followed to investigate, discipline, and/or prosecute those responsible and/or provide compensation or condolence payments to those injured and the families of those killed.

12.4 Acknowledge and provide explanations where there are discrepancies between findings of the U.S. government’s investigations and those of the United Nations, human rights organizations and journalists, including how these findings were assessed in the course of U.S. investigations.

To the U.S. Congress

13. Enhance transparency of oversight processes

13.1 Congressional committees involved in oversight of the use of force overseas should regularly disclose information about their procedures, activities, findings, and recommendations, subject only to redactions strictly necessary for legitimate national security reasons. They should release:

updated details on the procedures they follow to conduct oversight on the use of lethal force;

the types of information disclosed to the Congressional committees, and how they review it, including how regularly; and

information on actions taken and recommendations made by congressional committees to address issues and concerns that emerge through oversight.

13.2 Members of Congress should request the executive to report to them on:

detailed explanations for all past and future strikes in which there are credible allegations of unlawful killings or civilian harm;

the legal basis for strikes, including by disclosing legal memoranda for specific strikes;

how the government interprets and applies key legal and policy terms, as set out in the Annex to this report;

civilian casualties, including what lessons have been learned to mitigate and avoid civilian harm, and how these policies are being implemented;

individual investigations into specific strikes;

statistical and aggregate information on accountability, in particular how many investigations, prosecutions, and convictions there have been in relation to drone strikes and “targeted killings,” and the number of cases in which condolence payments or compensation has been paid, with amounts.

To the U.S. Judiciary

14. Ensure adequate post-strike judicial review of strikes and ensure the right to a remedy for victims of U.S. strikes

14.1 Conduct robust review of any government invocation of the state secrets privilege, and ensure that the application of that privilege does not result in the denial of a remedy for victims of U.S. strikes.

14.2 Ensure that the public interest in knowing about the policies, legal interpretations, and practices of the government in relation to its use of lethal force is given due consideration when weighing whether to order government disclosure of information.

To states in which the U.S. government carries out strikes

15.1 Publicly disclose whether consent has been given to the U.S. government to carry out operations in that country, and, if so, when it was given, by whom, and the scope of such consent (geographical, temporal, operational).

15.2 Disclose to the public, subject only to redactions strictly necessary for national security reasons, any agreements with the U.S. government regarding the use of force in their country.

15.3 Release government estimates for casualty figures on an annual basis, that include:

the numbers of those killed and injured in strikes, and the numbers of strikes assessed to be lawful or unlawful, broken down by month, year, country, age, and sex;

government estimates of the names and ages of those killed, where available; and

the methodology used to gather, assess, and compile civilian casualty estimates.

15.4 Publicly release the results of any investigations into U.S. strikes on their territory.

15.5 Ensure that domestic laws and international law are not violated through U.S. use of force in their country.

To all states

16.1 Publish the government’s views of the legal frameworks applicable to the use of force overseas, as well as any applicable policies.

16.2 Publicly disclose:

acknowledgement of all strikes, as well as civilian casualty data; and

decision-making and accountability processes.

16.3 Disclose to the public, subject only to redactions strictly necessary for legitimate national security reasons, any agreements with the U.S. government regarding the use of lethal force in other countries and the extent of assistance provided to these operations.

16.4 Ensure that any such agreements are not in violation of domestic laws and international law.

16.5 Reinforce existing standards on transparency, accountability, and the rule of law in relation to the use of force by:

recommending in the U.N. Human Rights Council Universal Periodic Review and other multilateral fora that states adopt improved transparency practices; and

supporting and proactively engaging in international processes that aim to increase transparency and accountability with respect to both the proliferation and use of armed drones.

16.6 If seeking to acquire armed drone technology, ensure that the “Ensuring Transparency in the Use of Force Benchmarks” set out in this report are met.

To the United Nations Special Rapporteurs on extrajudicial executions, countering terrorism, and truth

17.1 Monitor, evaluate and report on the transparency of the policies and practices of the U.S. government and other states on the use of force, and call on the U.S. government and other states to ensure greater transparency and accountability.

17.2 Request information from the U.S. government and other states on their policies and practices in relation to the use of force, including:

how they interpret and apply their legal and policy obligations;

government estimates of civilian casualties in strikes;

detailed explanations for all past and future strikes in which there are credible allegations of unlawful killings or civilian harm;

the results of investigations into strikes; and

details of measures taken to ensure accountability for wrongdoing.

17.3 Develop and provide guidance to states on how to meet their obligations to be transparent and accountable about the use of force.